SunLink Health Systems DEF 14A 2009
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant x
Filed by a Party other than the Registrant ¨
Check the appropriate box:
SunLink Health Systems, Inc.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
SUNLINK HEALTH SYSTEMS, INC.
900 Circle 75 Parkway, Suite 1120
Atlanta, Georgia 30339
October 6, 2009
You are cordially invited to attend the Annual Meeting of Shareholders which will be held at 10:00 a.m., local time, on Monday, November 9, 2009, at the Renaissance Waverly Hotel, 2450 Galleria Parkway, Atlanta, Georgia 30339.
The accompanying Notice of the Annual Meeting and Proxy Statement contain detailed information concerning the matters to be considered and acted upon at the meeting. The Companys 2009 Annual Report to Shareholders is also enclosed.
We hope you will be able to attend the meeting.
Shareholders of record at the close of business on September 18, 2009 are entitled to vote at the annual meeting. Whether or not you plan to attend the meeting, we encourage you to read the proxy statement and vote as soon as possible. You may vote:
Whether or not you plan to attend the meeting, please execute and return the enclosed proxy card at your earliest convenience to ensure representation at the meeting or vote via telephone or the Internet. If you later find you can attend the meeting, you may then withdraw your proxy and vote in person.
SUNLINK HEALTH SYSTEMS, INC.
900 Circle 75 Parkway, Suite 1120
Atlanta, Georgia 30339
NOTICE OF 2009 ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD ON NOVEMBER 9, 2009
To the Shareholders of
SUNLINK HEALTH SYSTEMS, INC.:
The Annual Meeting of Shareholders of SUNLINK HEALTH SYSTEMS, INC. will be held at 10:00 a.m., local time, on Monday, November 9, 2009, at the Renaissance Waverly Hotel, 2450 Galleria Parkway, Atlanta, Georgia 30339, for the purpose of considering and voting upon:
To transact such other business that may properly come before the meeting.
Holders of record of the common shares of SunLink at the close of business on September 18, 2009 will be entitled to notice of and to vote at the meeting. You may vote by mail, telephone or the Internet to the extent described in the Companys proxy statement. Internet and telephone voting for holders of record will conclude on the Sunday prior to the meeting.
Audited financial statements for the year ended June 30, 2009 and the related Managements Discussion and Analysis of Financial Condition and Results of Operations are included in Form 10-K, such portions of which are also contained in the Annual Report included with this communication.
To attend the annual meeting you must have valid proof of identification and other proof of beneficial ownership of SunLink Health Systems, Inc. shares (such as a brokerage statement reflecting your stock ownership) as of September 18, 2009.
Whether or not you expect to be present, please mark, sign, date and return the enclosed proxy promptly in the envelope provided or vote via telephone or the Internet. Giving the proxy will not affect your right to vote in person if you attend the meeting.
TABLE OF CONTENTS
SUNLINK HEALTH SYSTEMS, INC.
900 Circle 75 Parkway, Suite 1120
Atlanta, Georgia 30339
FOR 2009 ANNUAL MEETING OF SHAREHOLDERS
We are providing these proxy materials to you in connection with the solicitation of proxies by the board of directors of SunLink Health Systems, Inc. for the 2009 Annual Meeting of Shareholders and for any adjournment or postponement of the annual meeting. In this Proxy Statement, we refer to SunLink Health Systems, Inc. as SunLink, the Company, we or us.
We are holding the annual meeting at 10:00 a.m. local time, on Monday, November 9, 2009, at the Renaissance Waverly Hotel, 2450 Galleria Parkway, Atlanta, Georgia 30339, and invite you to attend in person.
These proxy materials include:
All shareholders will have the ability to access the proxy materials on a website referred to in these proxy materials.
We intend to mail this proxy statement and a proxy card to shareholders starting on or about October 6, 2009.
ABOUT THE MEETING
At our annual meeting, our shareholders will act upon the matters outlined in the accompanying notice of meeting. The scheduled matters to be acted upon at the 2009 annual meeting are the election of four directors and the ratification of Cherry, Bekaert & Holland, L.L.P. as our independent registered public accounting firm. In addition, our management will report on our performance during fiscal year 2009.
All shares represented by properly executed proxies received by the board of directors pursuant to this solicitation will be voted in accordance with the shareholders directions specified in the applicable voting instructions or proxy card. If no directions have been specified during Internet or telephone voting or by marking the appropriate places on physical proxy card, the shares will be voted in accordance with the boards recommendations which are:
A shareholder signing and returning a proxy has power to revoke it at any time prior to its exercise by delivering to the Company a later-dated proxy or by giving notice to the Company in writing or at the meeting, but without affecting any vote previously taken.
You may vote all shares that you owned as of September 18, 2009, which is the record date for the annual meeting. On September 18, 2009, we had 8,049,682 common shares outstanding. Each common share is entitled to one (1) vote on each matter properly brought before the meeting.
Ownership Of Shares
If your shares are registered directly in your name, you are the holder of record of these shares and we are sending these proxy materials directly to you. As the holder of record, you have the right to give your proxy directly to us, give your voting instructions by telephone or by the Internet directly to us, or vote in person at the annual meeting. If you hold your shares in a brokerage account or through a bank or other holder of record, you hold the shares in street name, and your broker, bank or other holder of record is sending these proxy materials to you. As a holder in street name, you have the right to direct your broker, bank or other holder of record how to vote by filling out a voting instruction form over the Internet or telephone, as provided to you by the holder of record, or by filling out a voting instruction form from your broker that accompanies your proxy materials. Regardless of how you hold your shares, we invite you to attend the annual meeting.
In compliance with the Securities and Exchange Commissions proxy rules our Proxy Statement and Annual Report to Shareholders are available at www.proxyvote.com, a website established specifically for access to such materials. Such materials are also available on the Companys website at www.sunlinkhealth.com.
How To Vote
Your Vote Is Important. We encourage you to vote promptly. Internet and telephone voting is available through 11:59 p.m. Eastern Standard time on Sunday, November 8, 2009 for all shares held of record. You may vote in one of the following ways:
By Telephone: If you are a holder of record located in the U.S., you can vote your shares by calling the toll-free telephone number provided on your proxy card or, if you are an owner in street name, by calling the toll-free number provided in the instructions from your broker. You may vote by telephone 24 hours a day. The telephone voting system has easy-to-follow instructions and allows you to confirm that the system has properly recorded your votes. If you vote by telephone, you do not need to return your proxy card.
By Internet: If you are a holder of record you can also vote your shares by using the Internet. Your proxy card indicates the website you need to access Internet voting. You may vote on the Internet 24 hours a day. As with telephone voting, you will be able to confirm that the system has properly recorded your votes. If you are an owner in street name, please follow the Internet voting instructions from your broker. You may incur telephone and Internet access charges if you vote on the Internet. If you vote by Internet, you do not need to return your proxy card.
By Mail: If you are a holder of record, you can vote by marking, dating and signing your proxy card and returning it by mail in the enclosed postage-paid envelope. If you hold your shares in street name, please complete and mail the voting instruction card.
At The Annual Meeting: If you vote your shares now, it will not limit your right to change your vote at the annual meeting if you attend in person. However, if you hold your shares in street name, you must obtain a proxy, executed in your favor, from the holder of record if you wish to vote your shares at the meeting.
All shares that have been properly voted and not revoked will be voted at the meeting. If you sign and return your proxy card without any voting instructions, your shares will be voted as the board of directors recommends.
Revocation Of Proxies: You can revoke your proxy at any time before your shares are voted if you: (1) submit a written revocation to our Secretary; (2) submit a later-dated proxy (or voting instructions if you hold shares in street name); (3) provide subsequent telephone or Internet voting instructions; or (4) vote in person at the meeting.
Quorum And Required Vote
Quorum: We will have a quorum and will be able to conduct the business of the annual meeting if the holders of a majority of the shares that are entitled to vote are present at the Meeting, either in person or by proxy.
Votes Required For Proposal: To elect directors a plurality of the votes cast is required. To ratify the appointment of Cherry, Bekaert & Holland, L.L.P. as the Companys independent registered public accounting firm a majority of votes cast is required.
Broker Vote On Routine And Non-Routine Proposals: If you hold your shares in a bank or brokerage account, you should be aware that if you fail to instruct your bank or broker how to vote within 10 days of the meeting, the bank or broker is permitted to vote your shares in its discretion on your behalf on routine items. NYSE Amex rules determine whether proposals presented at the shareholder meetings are routine or not routine. The election of the 2009 slate of directors and ratification of the independent public accounting firm are considered routine items.
While banks and brokers have historically cast their votes on routine items in support of management in the absence of instructions from their clients, some firms are now casting uninstructed votes in the same proportion as their clients instructed votes, giving, in effect, investors who provide voting instructions to brokers an opportunity to disproportionately influence the outcome of proxy voting. Thus, if you want to assure that your shares are voted in accordance with your wishes on Items 1 and 2, the routine matters in this proxy statement, you should complete and return your voting instruction form before October 28, 2009.
On July 1, 2009, the SEC approved proposed amendments to NYSE Rule 452 and of corresponding NYSE Listed Company Manual Section 402.08 that eliminates broker discretionary voting on the election of directors of shares held in client accounts when the broker has not timely received voting instructions from the client. The amendment is applicable to proxy voting by NYSE member-firm brokers, and effects all public companies regardless of the exchange upon which their securities are listed or traded, except for companies registered under the Investment Company Act of 1940, with respect to stockholder meetings held on or after January 1, 2010.
How We Count Votes: In determining whether we have a quorum, we count abstentions and broker non-votes as present and entitled to vote.
Our business is managed by the Companys employees under the direction and oversight of the board of directors. Except for Mr. Thornton, none of our board members is an employee of the Company. The board limits membership on the audit committee, executive compensation committee (referred to in this proxy statement as the compensation committee) and strategic alternatives committee to independent non-management directors. We keep board members informed of our business through discussions with management, materials we provide to them, visits to our offices and facilities and their participation in board and board committee meetings.
The board of directors has adopted charters for the standing board committees, resolutions governing the process for identification and nomination of candidates for the board, and the Companys code of ethics, known as the SunLink Health Systems, Inc. Code of Conduct. These documents, together with the Companys Articles of Incorporation and Code of Regulations, provide the framework for the governance of the Company. Our Code of Conduct is applicable to our directors and our employees, including our principal executive officer and principal financial officer. Members of our board are required to certify compliance with our Code of Conduct. Any amendment to or waiver of our Code of Conduct for any board member, our chief executive officer, our chief financial officer as well as any other executive officer as well as our comptroller and other accounting officer will be disclosed on our website, www.sunlink.com.
A complete copy of the charters of the board committees, the resolutions governing the process for identification and nomination of candidates for the board and the Code of Conduct for employees, as in effect from time-to-time, may be found on the Companys website at www.sunlinkhealth.com. Copies of these materials are also available to shareholders without charge upon written request to the Secretary of the Company.
Summary Of The Corporate Governance Principles
A majority of the board of directors is required to consist of independent, non-management directors who meet the criteria for independence required by NYSE Amex. Under such rules, a director is independent if he or she does not have a material relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. Our board annually evaluates each board members independence.
The board of directors has determined that as of September 18, 2009 six (6) of the Companys eight (8) incumbent directors are independent under these guidelines: Ms. Brenner and Messrs. Baileys, Burleson, Ford, Hall and Turner. Mr. Thornton, as a management director, also participates in the boards activities and provides valuable insights and advice. Each member of our audit and compensation committees is an independent director both under the general definition for board independence as well as any separate independence criteria for service on the applicable committee whether required by the SEC, NYSE Amex or SunLink. Independence requirements for committee service are set forth in the respective committee charters.
The non-management directors meet periodically in executive session without the management director present. The executive sessions of non-management directors are presided over by the director who is the chairperson of the committee responsible for the issue being discussed. General discussions, such as the review of the Companys overall performance, are presided over by the chairperson or a director elected by a majority of the non-management directors.
In the event SunLink receives any formal written offer to purchase more than 20% of SunLinks outstanding common stock, such proposal is required to be evaluated by the board of directors, who have delegated the evaluation of such offer(s) to the strategic planning committee of the board of directors. Such committee is required to be comprised of a majority of independent directors and currently is comprised solely of outside directors. The committee has established three criteria for any takeover proposal it considers: (1) adequate price both in light of current market conditions and also consistent with its longer view of the intrinsic value of SunLink, (2) certainty of financing, and (3) minimum execution risk. The strategic planning committee may retain such legal and financial advisors as it may deem necessary to advise it and the board in respect of any offer or other proposal.
In the event of any proposed business combination involving SunLink, the compensation committee is authorized to retain an independent financial advisor to evaluate and make recommendations to the compensation committee concerning any severance or retention package proposed for any of SunLinks officers or directors in connection with any proposed business combination. The compensation committee will evaluate any such proposals in light of existing severance benefits and the financial effect of any existing or additional benefits.
Director Share Ownership
SunLink believes that each director should have a personal investment in the Company. Each outside director (or future outside director, as the case may be) is required to own at least one thousand (1,000), common shares of SunLink. Each outside director (or future outside director, as the case may be) must maintain ownership of such number of common shares until such outside director ceases to serve as a member of the board. Each of our incumbent directors has complied with such ownership requirement since at least July 1, 2008.
Annual Meeting Attendance
The board of directors encourages all its members to attend the annual meeting of shareholders. In November 2008, all director nominees and all continuing directors were personally present at the annual meeting of shareholders, except Ms. Brenner, Dr. Baileys and Mr. Mills who attended by teleconference.
Communications By And With Directors
In connection with the proper discharge of their duties, our independent non-management directors have access to individual members of management or to other employees of the Company on a confidential basis. Likewise, in connection with the discharge of their duties, non-management directors as authorized by the board or a committee thereof also have access to Company records and files, and our directors may contact other directors without informing Company management of the purpose or even the fact of such contact.
The board of directors has provided a means by which shareholders, employees or other interested persons may send communications to the board or to individual members of the board. Such communications, whether by letter, e-mail or telephone, should be directed to the Secretary of the Company at SunLink Health Systems, Inc., Office of Corporate Secretary, 900 Circle 75 Parkway, Suite 1120, Atlanta, Georgia 30339. Our corporate secretary will forward communications to the intended recipients. However, unsolicited advertisements or
invitations to conferences or promotional material, in the discretion of the Secretary or his designee, may not be forwarded to the directors.
If a shareholder wishes to communicate to the chairperson of the audit committee about a concern relating to the Companys financial statements, accounting practices or internal controls, the concern should be submitted in writing to the chairperson of the audit committee in care of the Companys Secretary at our headquarters address. If the concern relates to the Companys governance practices, business ethics or corporate conduct, the concern likewise should be submitted in writing to the chairperson of the audit committee in care of the Companys Secretary at our headquarters address. If the shareholder is unsure as to which category his or her concern relates, he or she may communicate it to any one of the independent directors in care of the Companys Secretary.
The Companys whistleblower policy prohibits the Company or any of its employees from retaliating or taking any adverse action against anyone for raising a concern. If a shareholder or employee nonetheless prefers to raise his or her concern in a confidential or anonymous manner, the concern may be directed to the Office of Technical and Compliance Services at the Companys headquarters or by telephone at 1-866-244-5952. The Vice President for such services or his designee will refer the concern to the compliance committee, or if appropriate, the chairperson of the audit committee, who will assure that the matter is properly investigated.
Related Party Transactions
The Company is subject to a variety of prohibitions on, or approval procedures with respect to, related party transactions.
First, the Company is subject to certain NYSE Amex requirements which require shareholder approval of certain related party transactions.
Second, the Companys Code of Conduct prohibits related party transactions which could give rise to a conflict of interest. A related party transaction must be approved by the Companys compliance committee, or, in the case of a member of the board of directors and/or an executive officer, such related party transaction must be approved by the Companys audit committee, with such action reported to the Companys independent directors.
Common Shares Owned By Management And Certain Beneficial Owners
The following table sets forth, as of September 18, 2009 (unless otherwise indicated in the footnotes), certain information with respect to our common stock owned beneficially by each director, by each nominee for election as a director, by each named executive officer, by all directors, nominees and named executive officers as a group and by each person known by us to be a beneficial owner of more than 5% of our outstanding common stock. Except as noted in the footnotes, each of the persons listed has sole investment and voting power with respect to the shares of common stock included in the table.
Gildea Management Company is the investment manager to Axia Value Partners and as such it has the authority to vote or dispose of the Companys common shares owned by Axia Value Partners. John W. Gildea is a managing director of Gildea Management Company and is also a director of American Opportunity Trust. The aggregate number and percentage of the outstanding common shares of the Company reported by the Group to be beneficially owned by each Group and to the knowledge of the Group, by each other person who may be deemed to be a member of the Group is as follows:
Item 1Election Of Directors
The Companys board of directors is presently comprised of eight (8) members. One class of directors is normally elected at each annual meeting of shareholders for a term of two (2) years. At the 2009 annual meeting, shareholders will elect four (4) directors who will hold office until the annual meeting of shareholders in 2011. The board of directors has nominated Robert M. Thornton, Jr., Dr. Steven J. Baileys, Michael W. Hall and Gene E. Burleson for re-election as directors for terms of office of two (2) years.
It is the intention of the proxy agents named in the proxy, unless otherwise directed, to vote such proxies for the election of Robert M. Thornton, Jr., Dr. Steven J. Baileys, Michael W. Hall and Gene E. Burleson. Should any of such nominees be unable to accept the office of director, an eventuality which is not anticipated, proxies may be voted with discretionary authority for a substitute nominee or nominees designated by the board of directors.
The board of directors unanimously recommends a vote FOR the election of Robert M. Thornton, Jr., Dr. Steven J. Baileys, Michael W. Hall and Gene E. Burleson.
Identification Of Directors
The following table sets forth certain information about the nominees for election and the directors whose terms of office will continue after the meeting.
Certain information concerning each person listed in the above table, including his or her principal occupation for at least the last five (5) years, is set forth below.
Robert M. Thornton, Jr., 60, has been Chairman and Chief Executive Officer of the Company since September 10, 1998, President since July 16, 1996 and was its Chief Financial Officer from July 18, 1997 through August 31, 2002. From October 1994 to the present, Mr. Thornton has been a private investor and, since March 1995, has been Chairman and Chief Executive Officer of CareVest Capital, LLC, a private investment and management services firm. Mr. Thornton was a director of and held various executive offices with Hallmark Healthcare Corporation from October 1989 until Hallmarks merger with Community Health Systems, Inc. in October 1994.
Dr. Steven J. Baileys, 55, is a private investor and was Chairman of the Board of Directors of SafeGuard Health Enterprises, Inc., a public dental care benefits company, from July 1995 to June 2004. Dr. Baileys was Chief Executive Officer of SafeGuard from April 1995 to February 2000, its President from December 1981 until May 1997, and its Chief Operating Officer from December 1981 until April 1995. Dr. Baileys is licensed to practice dentistry in the State of California.
Michael W. Hall, 60, is a private investor and was Chairman and Chief Executive Officer of Pyramed Health System, Inc., a healthcare consulting firm, from August 1996 through March 2001. From April 1991 to August 1996, Mr. Hall was Chief Operating Officer and Executive Vice President of Southern Health Management Corporation, a healthcare management company specializing in rural healthcare. Prior to its sale to NetCare Health Systems, Inc., in 1996, Southern Health Management Corporation owned three of SunLinks seven current hospitals.
Gene E. Burleson, 68, is a private investor and was a director of HealthMont Inc., a Tennessee corporation, from its inception in September 2000 until its acquisition by SunLink in October 2003. Mr. Burleson previously was an officer and/or director of Mariner Post-Acute Network, Inc., a diversified provider of long-term and specialty health care services, Vitalink Pharmacy Services, Inc. and American Medical International, Inc., an acute-care hospital company and a predecessor to Tenet Healthcare Corporation. Mr. Burleson currently is the Chief Executive Officer and Chairman of the Board of Directors for Echo Healthcare Acquisition Corp., a blank check company formed to acquire domestic or international operating businesses in the healthcare industry. Mr. Burleson also serves on the Board of Directors of Prospect Medical Holdings, Inc., a provider of management services to independent physician associations, Deckers Outdoor Corporation, a shoe manufacturer, and various other privately held companies.
Karen B. Brenner, 57, has been President of Fortuna Asset Management, LLC, an investment advisory firm located in Newport Beach, California, since 2000. Fortuna Asset Management, LLC succeeded to the business of Fortuna Advisors, Inc., which Ms. Brenner formed and operated from 1993 to 2000.
C. Michael Ford, 70, has been the owner and Chairman of the Board of Directors of Montpelier Corporation, a venture capital and real estate holding company, since October 1990. Mr. Ford has been Chief Executive Officer of Newtown Macon, Inc. since November 2003 and was its Chief Financial Officer from October 2002 to November 2003. Mr. Ford was Chairman of the Board of In Home Health, Inc. from February 2000 to December 2000. Mr. Ford also served as Vice President of Development of Columbia/HCA Healthcare Corporation from September 1994 to September 1997, and was Vice President of Marketing of Meditrust Corp. from October 1993 to September 1994.
Howard E. Turner, 67, has been a partner in the law firm of Smith, Gambrell & Russell, LLP, since 1971, where he is a member of the firms executive committee. Mr. Turner was a director of Avlease, Ltd., a lessor of large commercial aircraft, and currently serves as an officer and director of Historic Motorsports Holdings, Ltd. Mr. Turner provides legal services to the Company through the law firm, Smith, Gambrell & Russell, LLP, as requested by the Company.
Christopher H. B. Mills, 57, is a Director and the Chief Investment Officer of J.O. Hambro Capital Management and has served in such capacity since January 1993. Mr. Mills also serves as the Managing Director/Investment Manager of North Atlantic Smaller Companies Investment Trust plc and Trident North Atlantic, positions he has held since 1998. From 1984 to 1993 Mr. Mills was a Director of MIM Management Limited.
The board of directors held six (6) meetings and took one (1) action by unanimous written consent during fiscal 2009. The board has four (4) standing committees: an executive committee, an audit committee, a compensation committee and a strategic planning committee. Each standing committee has the right to retain its own legal and other advisors. All directors attended 75% or more of the meetings of the board and board committees on which they served in our fiscal year ended June 30, 2009.
Membership On Board Committees
This table lists the four (4) board committees in existence during our last fiscal year and the directors who currently serve on them and the number of committee meetings held in the fiscal year ended June 30, 2009.
C = Chairperson
The audit committees primary function is to assist the board of directors in fulfilling its oversight responsibilities by:
Our audit committee has adopted a procedure to receive allegations on any fraudulent accounting issues through a toll-free telephone number and email as set out in our code of conduct and ethics.
All three (3) members of the audit committee are independent as defined in Section 803(A) of the NYSE Amex Company Guide and Rule 10A-3 of the Securities Exchange Act of 1934. The board has also determined that Mr. Ford meets the requirements for being an audit committee financial expert pursuant to Section 407 of the Sarbanes-Oxley Act of 2002. Our audit committee charter is available on our website at www.sunlinkhealth.com.
Composition; Independence; Compensation Committee Interlocks And Insider Participation
Our compensation committee is composed entirely of independent members of the board of directors. All three (3) members of the compensation committee are independent, as defined in Section 803(A) of the NYSE Amex Company Guide and each of them qualifies as an outside director (as such term is defined in Section 162(m) of the Internal Revenue Code and the regulations thereunder). Our compensation committee charter is available on our website at www.sunlinkhealth.com. No member of the committee is a current or former employee or officer of the Company or any of its affiliates.
Compensation Review Process; And Management Participation In Compensation Determinations
The compensation of our executive officers is determined by the compensation committee on an annual basis with the exception of the compensation of our chief executive officer and the chief operating officer of the Company and our president of SunLink ScriptsRx, LLC, which are generally fixed pursuant to the terms of multi-year employment agreements approved by the committee. Our compensation committee considers all elements of compensation in making its determinations. With respect to those executive officers who do not serve on our board of directors, our compensation committee also considers the recommendations of our chairman of the board and chief executive officer. The committee meets at various times during the year, and it also considers and takes action by written consent. The committee chairperson reports on committee actions and recommendations at board meetings.
The compensation committee has the power and authority of the board to perform and performs the following duties and responsibilities:
The executive committee is empowered to exercise all of the authority of the board of directors except as to matters not delegable to a committee under the General Corporation Law of Ohio.
Strategic Planning Committee
The strategic planning committee is empowered to, among other things, conduct periodic evaluations of the Companys strategic alternatives. The committee has the power and authority of the board to perform and performs the following duties and responsibilities:
The strategic planning committee charter is available on our website at www.sunlinkhealth.com.
Nomination Procedures And Shareholder Nominations
The board does not have a nominating committee but has adopted a nominating resolution which provides that the Company believes it to be in its best interest and the best interest of its shareholders to authorize the entire board to identify and nominate, by majority vote of the entire board of directors then in office, directors to serve on the Companys board so long as, pursuant to NYSE Amex rules, director nominees so selected are approved by a majority of the independent directors and, when vacancies occur on the board, the board shall actively seek individuals qualified to become board members based on business experience, professional expertise, industry experience and geographic representation. Shareholders who wish to submit nominees for election at an annual or special meeting of shareholders should follow the procedure generally described in Requirements, Including Deadlines, For Submission Of Proxy Proposals, Nomination Of Directors And Other Business Of Shareholders on page 46 of this proxy statement and more particularly, in the Companys Code of Regulations. The board of directors applies the same standards in considering candidates submitted by shareholders as it does in evaluating candidates submitted by members of the board of directors. The board does not have a separate policy with regard to the consideration of candidates recommended by shareholders other than the process provided in the nominating resolution.
We do not pay directors who are also our employees any additional compensation for serving as a director, other than customary reimbursement of expenses.
The Company believes that the compensation of non-management directors should be at a level which is sufficient to attract talented and diverse individuals to serve on the Companys board of directors while, at the same time, avoiding compensation levels where the level of compensation might present the appearance of a potential lack of director independence. However, in recent years, the board of directors has limited director compensation in light of the Companys recent financial performance to levels below those which the board would otherwise deem appropriate.
The following chart discloses the compensation of each non-management director for the fiscal year ended June 30, 2009:
The following chart discloses certain information with respect to stock awards and option awards held by each non-management director as of the fiscal year ended June 30, 2009:
Our executive officers, as of September 18, 2009, their positions with the Company or our subsidiaries and the ages of such executive officers are as follows:
All of our executive officers hold office for an indefinite term, subject to the discretion of the board of directors.
Biographical information for our non-director executive officers is set forth below:
Current Executive Officers
Mark J. Stockslager has been SunLinks Chief Financial Officer since July 1, 2007. He was interim Chief Financial Officer from November 6, 2006 until June 30, 2007. He has been the Principal Accounting Officer since March 11, 1998 and was Corporate Controller from November 6, 1996 to June 4, 2007. He has been associated continuously with our accounting and finance operations since June 1988 and has held various positions, including Manager of U.S. Accounting, from June 1993 until November 1996. From June 1982 through May 1988, Mr. Stockslager was employed by Price Waterhouse & Co.
Harry R. Alvis has been Chief Operating Officer of SunLink since September 1, 2002, and Senior Vice President of Operations of SunLink Healthcare LLC since February 1, 2001. Mr. Alvis provided turn-around operational consulting services for New American Healthcare Corp. from March 2000 through January 2001. From August 1997 through August 1999, Mr. Alvis was Chief Executive Officer of River Region Health Systems in Vicksburg, Mississippi, a healthcare facility owned by Quorum Health Group, Inc. From August 1995 through August 1997, Mr. Alvis was the Chief Executive Officer of Greenview Hospital in Bowling Green, Kentucky, a healthcare facility owned by Hospital Corporation of America. Mr. Alvis was the Chief Executive Officer of Pinelake Medical Center in Mayfield, Kentucky from November 1987 through August 1995. Pinelake was a healthcare facility owned by HealthTrust, Inc.
Jerome D. Orth has been Vice President, Technical & Compliance Services of SunLink since February 1, 2001. From January 1995 through January 2001, Mr. Orth was Vice President of Hospital Financial Operations for ValueMark Healthcare Systems, Inc., a privately-held owner-operator of psychiatric hospitals. From February 1987 through October 1994, Mr. Orth held various positions with Hallmark Healthcare Corporation, including Executive Director, Hospital Financial Management and Executive Director, Management Information Systems. Prior to 1987, Mr. Orth spent 12 years in various accounting, third party reimbursement and management positions with Hospital Corporation of America.
Jack M. Spurr, Jr. has been the Vice President, Hospital Financial Operations of SunLink since October 1, 2002. From February 1, 2001 until September 30, 2002, Mr. Spurr performed several interim financial roles for the Company. From 1978 to 2000, Mr. Spurr held financial positions with Hospital Corporation of America, Columbia Healthcare, Inc., Quorum Health Group, Inc., HealthTrust, Inc. and National Healthcare Inc.
George D. Shaunnessy has been President of SunLink ScriptRx, LLC (formerly SunLink Homecare Services, LLC) since April 22, 2008. Mr. Shaunnessy was President and Chief Executive Officer of MedImagining, Inc, from 2003 to December 2007, Managing Partner and Chief Executive Officer of Affiliated Management Services, Inc., from 1997 to April 2008, and President, Chief Executive Officer and a director of Housecall Medical Resources, Inc. from 1993 to 1997. From 1978 to 1991, Mr. Shaunnessy held executive positions with National Healthcare Inc., Foster Medical Home Health Care, a division of Avon Products, Charter Medical Corporation and Hospital Affiliates International, Inc.
Compensation Disclosure And Analysis
Our companys goal is to be a leading provider of healthcare services in the rural and exurban markets. To achieve our goal we seek to deliver financial performance consistent with that of other top healthcare companies. We believe that having executives who are strong leaders has enabled us and will continue to enable us to attract and retain superior talent, promote continued growth and demonstrate the companys values patient and customer commitment, quality, integrity, teamwork, respect for people, good citizenship, a will to win and personal accountability.
Our compensation program for our executive officers is designed to attract, motivate and retain executives of outstanding ability and experience who are critical to the achievement of our goal. The program includes incentive compensation tied to our annual and longer-term financial, operational and strategic objectives, which are intended to align the financial interests of our executive officers with those of our shareholders. This compensation philosophy is characterized by the following principal elements:
1. Measurable goals that promote the interest of our three constituencies:
2. Competitive pay practices that include appropriate performance incentives and total direct compensation, which are periodically reassessed by a review of the compensation practices and pay levels of a sample of other healthcare companies, especially other companies providing services in rural and exurban markets.
3. An emphasis on long-term incentive compensation, reflecting our commitment to meet or exceed our objectives, including enhancing shareholder value, over the moderate and long term, and to retain a highly talented and experienced senior executive team to lead the company successfully in a rapidly changing industry and economic environment.
Objectives And Goals
The objectives of the compensation committee have been to adopt a compensation approach that is basically simple, internally equitable and externally competitive, and that attracts, motivates and retains qualified people capable of contributing to the growth, success and profitability of the Company, thereby contributing to long-term shareholder value.
Major Compensation Components
The principal components of compensation for our executive officers historically have been base salary, short-term incentives, generally in the form of cash bonus programs, and long-term incentives, generally in the form of equity-based awards such as stock awards and stock options. Historically, we have believed that the Companys goals are best met by utilizing an approach to compensation with these three (3) distinct elements.
During the fiscal year ended June 30, 2009, the CEO, Mr. Thornton, was employed under an employment agreement which provided for an annual base salary of not less than $335,000 which by mutual agreement was reduced at December 1, 2008 to $330,000. The compensation committee, believes, based in part on consultation with a compensation consulting firm at the end of fiscal year 2005, Mr. Thorntons salary is on the low end of salaries for CEOs of regional hospital management companies and also below that of CEOs for healthcare companies with similar revenues.
Likewise, such targets may be subject to change based on subsequent developments or may be dependent on events or assumptions which are, either in whole or in part, beyond the control of the Company or the named officer. However, specific quantitative areas may include profitability, stock price, net income from continuing operations and cost control. We also do not disclose specific targets which are based on other factors or criteria involving confidential trade secrets or confidential commercial or financial information.
Our targets typically have had a threshold which must be achieved before any payments are made and a maximum performance target beyond which no additional bonus amounts will be paid. It is not presumed that thresholds necessarily can be achieved.
The executive bonus plan for the fiscal year ended June 30, 2009 provided that 100% of each bonus be based on un-weighted discretionary criteria adopted by the Executive Compensation Committee from time to time and the discretionary criteria may vary by each participant. For 2009 the discretionary criteria revolved around the fundamental objective of increasing shareholder value by all appropriate means, in addition to achieving suitable financial results, including but not limited to qualitative criteria such as:
Management did not achieve the qualitative criteria above to the extent expected by the committee and the compensation committee did not award bonuses under the 2009 executive bonus plan to any of the named executive officers for the 2009 fiscal year.
In the past, the executive bonus plan also relied on objective financial criteria. The primary financial criterion used to evaluate suitable financial results was net income from continuing operations. For fiscal 2009, as set forth in the budget adopted in June 2008, the net income from continuing operations goal for internal planning purposes represented a substantial increase over the fiscal 2008 results in light of the expected contribution to net income of the specialty pharmacy business acquired in April 2008.
The Companys net income from continuing operations did not achieve the internal goal set forth in the 2009 budget or the threshold used in the past to award a bonus.
Our net income goals have been intended to be challenging but achievable based on the companys internal projections. The following table sets forth, since 2005, the percentage of net income goals achieved, whether or not the net income goal was revised and the percentage of the potential bonus plan pool paid.
In fiscal 2008, Mr. Thornton was awarded 70,000 options for Company stock with an exercise price of $8.00. These options vested one-fourth on September 24, 2008 and were scheduled to vest one-fourth on September 24, 2009, one-fourth on September 24, 2010 and one-fourth on September 24, 2011. Mr. Thornton surrendered both vested and unvested options on November 12, 2008 in connection with his participation in the 2009 executive bonus plan. Mr. Thornton also was previously granted 38,500 options for Company common stock with an exercise price of $9.63 on November 11, 2005. These options vested one-third on November 11, 2006, one-third on November 11, 2007 and one-third on November 11, 2008. These options also were surrendered on November 12, 2008 by Mr. Thornton in connection with his participation in the 2009 executive bonus plan.
SHORT-TERM INCENTIVE PLAN AWARDS IN LAST FISCAL YEAR
The following table sets forth for each named executive officer, the bonus percentage potentially attributable to performance targets and the percentage attributable to the committees discretion. The committee has the authority to adjust, waive or reset targets. The following table also sets forth information regarding the annual cash incentive awards made to the named executive officers for fiscal 2009:
Equity Awards In 2009
In 2009, 2,000 stock options and no shares of restricted stock were granted to the named executive officers of the Company.
Equity Award Timing
Our current policy with respect to equity awards to key employees, including our executive officers (but excluding grants to newly hired employees), is that equity awards occur at the time of the board of directors meeting to be effective as of a specified date no sooner than 48 hours after earnings are released.
Potential Changes In Compensation Mix
The committee may authorize increased cash compensation, either as salary or incentive compensation, but has not determined to do so.
Use Of Employment And Severance Agreements
In the past, the committee has determined that competitive considerations merited the use of employment contracts or severance agreements for certain members of senior management. Currently, Messrs. Thornton,
Alvis and Shaunnessy are employed pursuant to employment contracts, while Messrs. Stockslager, Orth and Spurr are employed pursuant to employment letters. Messrs. Thornton, Alvis, Shaunnessy and Stockslagers agreements include severance benefits. The Companys severance benefits for Messrs. Thornton, Alvis, Shaunnessy and Stockslager take effect in connection with severance other than for death, disability or cause. Additionally, Messrs. Thornton, Alvis and Stockslager also get severance benefits in connection with a change in control. We have designed these severance benefits to help keep employees focused on their jobs, especially during the uncertainty that accompanies a change in control, to preserve benefits after a change in control transaction, and to help us attract and retain key talent. Compensation criteria for officers employed pursuant to employment agreements with severance benefits may be more difficult to adjust on an annual basis. For more information on employment or severance contracts please refer to Employment Contracts, Termination Of Employment And Change-In-Control Arrangements beginning on page 35 of these proxy materials.
Change- In-Control Compensation
Provisions for additional or continued compensation in connection with a change in control of the Company are located in two areas: (1) specifically in the Companys employment agreements with Messrs. Thornton, Alvis and Stockslager as discussed above; (2) and, more generally, in the Companys equity incentive plans and/or award agreements thereunder, whereby the committee administering such plans and awards has the power to accelerate the vesting of such awards upon a change in control or where such plans or awards provide for automatic vesting in the event of such change, whether merely upon the occurrence of such event or upon the occurrence of such event and an adverse occurrence for the participant, such as termination of employment.
The change-in-control provisions set forth in the Companys employment agreements employ several approaches to cause a triggering event. Change-in-control benefits are payable in the ordinary course upon the occurrence of the event. Payment of benefits is not restricted only to situations involving the involuntary termination of the officer afforded such change in control protection. Instead, benefits are payable not only in the case of involuntary terminations but also where the executive, in connection with or within one year of the transaction, elects to terminate his employment. The committee believes this approach helps to ensure the continued availability of the services of the executive during the times of uncertainty inherent with any change in control, including especially in the immediate post-event period under new ownership and/or management, while at the same time limiting windfall benefits by making the benefits payable only after a termination of employment. By providing post-event coverage, the executive is encouraged to remain in the employ of the Company without the need to be concerned about a post-event restructuring which may result in a material diminishment of the executives duties or post-event management or ownership changes with respect to which the executive may have concerns or reservations.
The definition of change in control is intended to be broad in scope and to capture most, if not all, of the scenarios where an actual change in control has occurred. Automatic vesting under the terms of our equity compensation plans, if any, is based on market practices and a recognition that the value of equity compensation can be radically affected by a change in control, whether or not existing management is retained.
In connection with providing severance benefits to the Companys other executive officers, the committee has evaluated, and expects to continue to examine, the amounts which could be realized by persons granted such rights upon a change in control.
The compensation committee does not engage in a specific process which attempts to justify compensation levels based on wealth accumulation. The committee does not analyze proposed annual compensation for any individual versus the accrued wealth of such individual, or the accrued wealth of persons with similar job titles at other companies. The committee believes that no such meaningful analysis can be performed due to, among other things, disparate actual duties versus job titles, different employment histories, different life experiences or needs
or social inequalities. As previously noted, the committee does evaluate from time to time whether compensation levels are consistent with the companys goal of being a leader among rural and exurban healthcare companies and maintaining or attracting superior executive talent appropriate to such goal.
Recapture And Forfeiture Policies
Historically the Company has not had formal policies with respect to the adjustment or recapture of performance-based awards where the financial measures on which such awards are based, or to be based, are adjusted for changes in reported results such as, but not limited to, instances where the Companys financial statements are restated. The committee does not believe that repayment generally should be required where the plan participant has acted in good faith and the errors are not attributable to the participants gross negligence or willful misconduct. However, the committee has in the past and may in the future take such errors into account, including whether the conduct was negligent or without fault, in setting and awarding current or future compensation, including discretionary compensation. The committee believes the Company has or will have available negotiated or legal remedies in many situations. Furthermore, the committee may elect to take into account factors such as the timing and amount of any financial restatement or adjustment, the amounts of benefits received and the clarity of accounting requirements lending to any restatement in fixing of current or future compensation.
Deductibility Of Compensation And Related Tax Considerations
As one of the factors in its review of compensation matters, the committee considers the anticipated tax treatment to the Company and to the executives of various payments and benefits.
Although the Companys stock option plans generally have been structured with the goal of complying with the requirements of Section 162(m), and the compensation committee believes stock options awarded thereunder should qualify as performance-based compensation exempt from limitations on deductibility under Section 162(m), the deductibility of any compensation has not been a condition to any compensation decision. Based on current compensation levels, the Company does not expect its ability to deduct executive compensation to be limited by operation of Section 162(m).
In a 2008 Revenue Ruling, the IRS announced a significant shift in its interpretation of Section 162(m) relating to the performance-based compensation exception to the $1 million dollar limitation on tax deductible compensation paid by publicly held companies. The regulations under Section 162(m) specifically allow payment of performance-based compensation upon death, disability, or a change of control. Using the reasoning that it was analogous to death, disability or a change of control, the IRS had concluded in previous private letter rulings that performance-based payments made as a result of involuntary terminations by the employer without
cause or by the executive for good reason did not fail to qualify as Section 162(m) performance-based compensation. This meant that the performance-based payment was still deductible under Section 162(m), even though the performance goal had not been met at the time of payment for these types of events (e.g. a payment at target upon termination for good reason). However, according to the new Revenue Ruling, this rationale is no longer being used by the IRS in analyzing performance-based compensation.
The new Revenue Ruling 2008-13 published in February 2008 states that if performance-based pay could become due under a plan or agreement upon a termination without cause, for good reason, or as a result of voluntary retirement, and would be payable regardless of whether performance-based goals are met, then any payment from such plan or agreement will not qualify as Section 162(m) performance-based compensation and will not be eligible for exclusion from the Section 162(m) $1 million compensation limit. The ruling applies to performance periods beginning after January 1, 2009, and compensation arrangements entered into, renewed or extended after February 21, 2008.
Under the companys executive benefits agreement, certain terminations following a change of control give rise to a payment obligation based on the amount of the officers salary and prior bonus amounts. Because such payment is not provided for under the executive incentive compensation plan and is not based on amounts for which the executive is eligible in the current year, the company believes that such payment will not result in any disqualification of the executive incentive compensation plan, whose performance-based cash compensation payments will continue to be excluded from compensation for purposes of calculating whether or not the $1 million deductibility limit has been achieved.
Due to interpretations and changes in the tax laws, some types of compensation payments and their deductibility depend on the timing of an executives vesting or exercise of previously granted rights and other factors beyond the compensation committees control which could affect the deductibility of compensation.
The compensation committee will continue to consider the impact of Section 162(m) when designing compensation programs, and in making compensation decisions affecting the Companys Section 162(m) covered executives, if any. The committee expects the majority of future stock awards will be excludable from the Section 162(m) $1 million limitation on deductibility, other than in the case of certain specified events including a change in control, since vesting of any such awards will likely be tied to performance-based criteria, or be part of compensation packages which are less than $1 million. Nonetheless, the compensation committee believes that in certain circumstances factors other than tax deductibility are more important in determining the forms and levels of executive compensation most appropriate and in the best interests of the Company and its shareholders. Accordingly, we may award compensation in excess of the deductibility limit, with or without requiring a detailed analysis of the estimated tax cost of non-deductible awards to the Company. Given the dynamic and rapidly changing healthcare industry and SunLinks business, as well as the competitive market for outstanding leadership talent, the compensation committee believes it is important to retain the flexibility to design compensation programs consistent with its compensation philosophy for the Company, even if some executive compensation is not fully deductible.
Duration Of Benefits
The duration of benefits for our executive officers is based on a variety of factors including the purpose of the benefit, historical expectations, competitive factors and the cost of providing the benefit. Historically, we have provided no lifetime benefits.
Future Executive Compensation
For fiscal 2010, the compensation committee has set executive compensation, including base salaries, and kept unchanged the bonus criteria. The committee is currently reviewing the Companys executive compensation arrangements in light of the Companys performance and the current healthcare environment. The committee expects to engage the services of a compensation consultant in connection with such review and expects to establish fiscal 2010 short-term incentive arrangements for the Companys executive officers and may establish equity or non-equity based long-term arrangements.
Chief Executive Officer Compensation
Except as noted, the compensation policies described above apply equally to the compensation of the Chief Executive Officer.
Attracting and retaining talented and motivated management and employees is essential to create long-term shareholder value. Offering a competitive, performance-based compensation program helps to achieve this objective by aligning the interests of the Companys executive officers with those of shareholders. The committee believes that SunLinks 2009 compensation program met these objectives. Likewise, based on our review, the committee finds the total compensation (and, in the case of the severance and change-in-control scenarios, the potential payouts) to the Companys named executive officers in the aggregate to be reasonable and not excessive.
Compensation Committee And Management Reviews And Authorization
The compensation committee has reviewed the above Compensation Disclosure and Analysis with the Companys Chief Executive Officer and Chief Financial Officer. Based on a review of this Compensation Disclosure and Analysis and discussion between the compensation committee and the Companys Chief Executive Officer and Chief Financial Officer, the compensation committee has recommended the board include the Compensation Disclosure and Analysis in this proxy statement.
This report has been submitted by the compensation committee:
OTHER EXECUTIVE COMPENSATION INFORMATION
The following sections of this Proxy Statement set forth compensation information relating to the Chief Executive Officer, Chief Financial Officer and the four most highly compensated executive officers of the Company, other than the Chief Executive Officer and Chief Financial Officer whose compensation exceeds $100,000 per year (if any) (collectively, the named executive officers), for the fiscal year ended June 30, 2009.
The following table shows the compensation awarded or paid by SunLink for services rendered for the fiscal years ended June 30, 2007, 2008 and 2009 to the named executive officers.
SUMMARY COMPENSATION TABLE
Grants of Plan-Based Awards in Last Fiscal Year
The following table shows information about plan-based awards during fiscal 2009 for the named executive officers.
Outstanding Equity Awards At Fiscal Year-End
The following table provides information with respect to the common stock that may be issued upon the exercise of options and other awards under the Companys existing equity compensation plans as of June 30, 2009.
Options Exercised and Stock Vested
The following table provides information with respect to common shares which were issued pursuant to the exercise of options or which were shares of restricted stock that vested, in each case between July 1, 2008 and June 30, 2009 for the named executive officers:
Long-Term Incentive Plan Awards
The Company granted awards to named executive officers during the fiscal year ended June 30, 2009 as disclosed in the Grants Of Plan-Based Awards In Last Fiscal Year on page 32 under our 2005 Equity Incentive Plan, a long-term incentive plan, as defined under applicable SEC Rules.
Pension Plan Benefits
Effective February 28, 1997, SunLink amended its domestic retirement plan to freeze participant benefits and close the plan to new participants. Accordingly, compensation earned after February 28, 1997 is not used in determining a participants accrued benefit. Mr. Thornton and Mr. Stockslager are participants in the plan. The estimated monthly benefits to be received by them at age 65 are $159.94 and $601.24, respectively.
Nonqualified Deferred Compensation
The Company does not generally offer nonqualified deferred compensation to its officers, and none of its named executive officers currently participate or have participated in any nonqualified deferred compensation plan during the past fiscal year.
Employment Contracts, Termination Of Employment And Change-In-Control Arrangements
Robert M. Thornton, Jr. Mr. Thornton, Chairman, President and Chief Executive Officer, is currently employed by the Company under the terms of an employment agreement effective July 1, 2005, as amended to date, for a term ending June 30, 2008 absent notice the contract provides for automatic renewal at the end of its then current term for a period of eighteen months. Mr. Thorntons current employment agreement provides for a base salary at a rate of not less than $335,000 per annum effective July 1, 2005 and thereafter plus any increases that may be granted at least annually by the Company. However, based on mutual agreement, between the company and Mr. Thornton, his current salary is $330,000. Mr. Thornton is eligible to participate in the Companys 2005 Equity Incentive Plan if equity is available thereunder and if the board decides to grant him additional equity compensation. Under his employment agreement, Mr. Thornton is also eligible to receive an annual bonus of up to sixty percent of his annual base salary if certain criteria established by the compensation committee (in consultation with him) are met. Mr. Thornton is eligible to participate in the Companys medical, dental, life and disability programs.
Mr. Thorntons employment agreement also provides for severance payments in the event Mr. Thornton ceases to be employed by the Company. If Mr. Thornton is terminated for death, disability or cause, he is entitled to the accrued compensation under his employment agreement, including a pro rata share of any annual bonus. If Mr. Thornton is terminated other than for death, disability or cause, he is entitled to receive severance payments equal to thirty months salary, a pro rata portion of any annual bonus for which goals have been proportionately met and continuation of certain benefits for and during the thirty months following termination.
Mark J. Stockslager. Mr. Stockslager, Chief Financial Officer, is currently employed by the Company under the terms of an employment letter effective January 1, 2001. Mr. Stockslagers current employment letter provides for a salary of $7,333 per month or $88,000 on an annualized basis, which will be reevaluated at least annually to determine if any adjustments should be made. Currently, Mr. Stockslagers salary is $14,438 per month or $173,250 on an annualized basis. Additionally, Mr. Stockslager is also eligible to receive an annual bonus of up to forty percent of his annual base salary if certain criteria established by the compensation committee are met. Mr. Stockslager is eligible to participate in the Companys stock option program, as well as the Companys medical, dental, life and disability programs. Mr. Stockslager will be entitled to severance pay by continuation of his base salary for nine months if he is terminated, other than for cause, as determined by the board of directors in its sole discretion.
Harry R. Alvis. Mr. Alvis, Chief Operating Officer, is currently employed by the Company under the terms of an employment agreement effective July 1, 2005, as amended to date for a term ending June 30, 2009 with an automatic renewal period of twelve months. Mr. Alvis employment agreement provides for a salary of not less than $244,000 per annum effective July 1, 2005 and thereafter, plus any increases that may be granted at least annually by the Company. Currently, Mr. Alvis salary is $250,100. Under his employment agreement, Mr. Alvis is eligible to participate in the Companys 2005 Equity Incentive Plan if the board decides to grant him additional options under this Plan. Mr. Alvis is also eligible to receive an annual bonus of up to sixty percent of his annual base salary if certain criteria established by the compensation committee are met. Mr. Alvis is also eligible to participate in the Companys medical, dental, life and disability programs.
Mr. Alvis employment agreement also provides for severance payments in the event Mr. Alvis ceases to be employed by the Company. If Mr. Alvis is terminated for death, disability or cause, he is entitled to the accrued compensation under the agreement, including a pro rata share of any annual bonus. If Mr. Alvis is terminated other than for death, disability or cause, he is entitled to receive severance payments equal to twelve months salary, a pro rata portion of any annual bonus for which goals have been proportionately met and continuation of certain benefits for and during 60 days following termination.
George D. Shaunnessy. Mr. Shaunnessy, President of SunLink ScriptsRx, LLC, is currently employed by the Company under the terms of an employment agreement effective April 22, 2008 for a term ending on
April 22, 2011 with an automatic renewal period of twelve months. Mr. Shaunnessys employment agreement provides for a base salary of $285,000 per annum, plus any increases that may be granted upon at least annual review by the Company. Under his employment agreement, Mr. Shaunnessy is eligible to receive an annual grant of stock options at the boards discretion. Mr. Shaunnessy is also eligible to receive an annual bonus of up to sixty percent of his annual base salary if certain criteria established by the compensation committee are met. Mr. Shaunnessy is also eligible to participate in the Companys medical, dental, life and disability programs.
Mr. Shaunnessys employment agreement also provides for severance payments in the event Mr. Shaunnessy ceases to be employed by the Company. If Mr. Shaunnessy is terminated for death, disability or cause, he is entitled to any earned and unpaid base salary under his employment agreement. If Mr. Shaunnessy is terminated without cause, he is entitled to any earned and unpaid base salary plus severance pay, in the amount of his annualized base salary, for the remaining current term of his employment agreement.
Jerome D. Orth. Mr. Orth, Vice President, Technical and Compliance Services, is currently employed by the Company under the terms of an employment letter effective February 1, 2001. Mr. Orths current employment letter provides for a salary of $10,833 per month or $130,000 on an annualized basis, which will be reevaluated at least annually to determine if any adjustments should be made. Currently, Mr. Orths salary is $14,333 per month or $172,000 on an annualized basis. Additionally, Mr. Orth is eligible to receive an annual bonus of up to forty percent of his base salary if certain criteria established by the compensation committee are met. Mr. Orth is eligible to participate in the Companys stock option program, as well as the Companys medical, dental, life and disability programs.
Jack M. Spurr, Jr. Mr. Spurr, Vice President, Hospital Financial Operations, is currently employed by the Company under the terms of an employment letter effective October 1, 2002. Mr. Spurrs current employment letter provides for a salary of $8,333 per month or $100,000 on an annualized basis, which will be reevaluated at least annually to determine if any adjustments should be made. Currently, Mr. Spurrs salary is $13,992 per month or $167,900 on an annualized basis. Additionally, Mr. Spurr is eligible to receive an annual bonus of up to forty percent of his base salary if certain criteria established by the compensation committee are met. Mr. Spurr is eligible to participate in the Companys stock option program, as well as the Companys medical, dental, life and disability programs.
A change-in-control will be deemed to have occurred in the event that any of the following events shall have occurred:
Upon a change-in-control, if Mr. Thorntons employment is thereafter terminated for any reason other than cause or if he terminates his employment within one (1) year of the change in control, he is entitled to (a) thirty months of base pay, to be paid in accordance with the Companys payroll practices; (b) accrued compensation, including a pro rata portion of any bonus for which goals have been proportionately met; (c) health and certain ancillary benefits for twenty-four months following termination; and (d) full vesting of any then unvested stock options.
Upon a change-in-control, if Mr. Alvis employment is thereafter terminated for any reason other than cause or if he terminates his employment within one (1) year of the change-in-control, he is entitled to (a) fifteen months of base pay, to be paid in accordance with the Companys payroll practices; (b) accrued compensation, including a pro rata portion of any bonus for which goals have been proportionately met; (c) health and certain ancillary benefits for ninety days following termination; and (d) full vesting of any then unvested stock options.
Upon a change-in-control, if Mr.Stockslagers employment is thereafter terminated for any reason other than cause or if he terminates his employment within one (1) year of the change-in-control, he is entitled to a severance equal to twelve months of base pay, to be paid in accordance with the Companys payroll practices.
The following table sets forth certain potential benefits which would have been realized in connection with a change-in-control and termination of employment for the Companys principal executive officer, principal financial officer and four other most highly compensated executive officers for 2009 assuming the change in control and termination occurred as of the last day of the most recently completed fiscal year.
The following table sets forth certain potential benefits which would have been realized in connection with a termination of employment due to disability for the Companys principal executive officer, principal financial officer and four other most highly compensated executive officers for 2009 assuming the qualifying event and termination occurred as of the last day of the most recently completed fiscal year.
The following table sets forth certain potential benefits which would have been realized in connection with a termination of employment due to death for the Companys principal executive officer, principal financial officer and four other most highly compensated executive officers for 2009 assuming the qualifying event and termination occurred as of the last day of the most recently completed fiscal year.
The following table sets forth certain potential benefits which would have been realized in connection with a termination of employment due to termination of employment for cause for the Companys principal executive officer, principal financial officer and four other most highly compensated executive officers for 2009 assuming the termination occurred as of the last day of the most recently completed fiscal year.
The following table sets forth certain potential benefits which would have been realized in connection with a termination of employment due to termination of employment without cause for the Companys principal executive officer, principal financial officer and four other most highly compensated executive officers for 2009 assuming the termination occurred as of the last day of the most recently completed fiscal year.
Item 2Ratification of Independent Registered Public Accounting Firm
Cherry, Bekaert & Holland, L.L.P. was engaged to perform the Companys annual audit for the fiscal year ended June 30, 2009. We anticipate that representatives of Cherry, Bekaert & Holland, L.L.P. will be present at the annual meeting of shareholders to respond to appropriate questions and to make a statement if such representatives so desire.
The audit committee of the board of directors of the Company has appointed Cherry, Bekaert & Holland, L.L.P. to serve as our independent registered public accounting firm for the fiscal year beginning July 1, 2009. We are asking our shareholders to ratify the selection of Cherry, Bekaert & Holland, L.L.P. as our independent registered public accounting firm. Although ratification is not required by our bylaws or otherwise, the board is submitting the selection of Cherry, Bekaert & Holland, L.L.P. to our shareholders for ratification as a matter of good corporate practice. If the selection is not ratified, the audit committee will consider whether it is appropriate to select another independent registered public accounting firm. Even if the selection is ratified, the audit committee in its discretion may select a different independent registered public accounting firm at any time during the year and may periodically request proposals from other independent registered public accounting firms and as a result of such process may select Cherry, Bekaert & Holland, L.L.P. or another independent registered public accounting firm if the audit committee determines that such a change or action would be in the best interests of the company and our shareholders.
The board of directors unanimously recommends a vote FOR the ratification of the appointment of Cherry, Bekaert & Holland, L.L.P. as our independent registered public accounting firm.
Report Of The Audit Committee
The authority, duties and responsibilities of the audit committee of the board of directors of the Company are set forth in detail in the written audit committee charter, which was adopted by the board of directors of the Company and which complies with the applicable rules of NYSE Amex. The audit committee has three members, each of whom is independent under the applicable rules of NYSE Amex. In accordance with section 407 of the Sarbanes-Oxley Act of 2002, Mr. Ford has been identified as an Audit Committee Financial Expert.
The audit committee reviews and assesses the adequacy of its charter on an annual basis. A copy of the audit committee charter is available on the Companys website at www.sunlink.com.
The audit committee is responsible for overseeing the Companys financial reporting process on behalf of the board of directors. Management of the Company has the primary responsibility for the Companys financial reporting process, principles and internal controls as well as preparation of its financial statements in accordance with generally accepted accounting principles. The Companys independent auditors are responsible for performing an audit of the Companys financial statements and expressing an opinion as to the conformity of such financial statements with generally accepted accounting principles in the United States.
The audit committee has reviewed and discussed the Companys audited financial statements as of and for the year ended June 30, 2009 with management and the independent auditors. The audit committee has discussed with the independent auditors the matters required to be discussed under Standards of the Public Company Accounting Board (United States), including those matters set forth in Statement on Auditing Standards No. 61 (Communication With Audit Committees), as amended by Statement on Auditing Standards No. 90 (Audit Committee Communications) as amended by AICPA, Professional Standards, Vol. 1 AU section 380, as adopted
by the Public Company Accounting Oversight Board in Rule 3200T. The independent auditors have provided to the audit committee the written disclosures and the letter required by Independence Standards Board Standard No. 1 (Independence Discussions with Audit Committees), as currently in effect, and the audit committee has also considered whether the independent auditors provision of information technology and other non-audit services to the Company is compatible with maintaining the auditors independence. The audit committee has concluded that the independent auditors are independent from the Company and its management.
The audit committee met six (6) times during the 2009 fiscal year. In addition, the members of the committee reviewed, and the chairperson of the committee discussed with management and the Companys independent auditors, the interim financial information contained in each quarterly earnings release prior to the release of such information to the public.
The audit committee discussed with the Companys independent auditors the overall scope and plans for their respective audits. In addition, the audit committee met with the Chief Executive Officer and Chief Financial Officer of the Company to discuss the processes that they have undertaken to evaluate the accuracy and fair presentation of the Companys financial statements and the effectiveness of the Companys system of disclosure controls and procedures.
In fulfilling its oversight responsibilities and as part of its review of the Companys 2009 Annual Report, the audit committee met with the Companys independent auditors, with and without management present, to discuss their evaluations of the Companys internal controls as well as the overall quality of its financial reporting.
The fees paid to the Companys auditors, Cherry, Bekaert & Holland, L.L.P., as well as the policy on pre-approval of audit and non-audit services are set forth elsewhere in this proxy statement.
As a result of the reviews and discussions with management and Cherry, Bekaert & Holland, L.L.P. referred to above, the audit committee recommended to the board and the board has approved that the audited financial statements of the Company be included in the Annual Report on Form 10-K for the fiscal year ended June 30, 2009 for filing with the Securities and Exchange Commission.
This report has been submitted by the audit committee:
The foregoing report shall not be deemed incorporated by reference by any general statement incorporating by reference this proxy statement into any filing under the Securities Act of 1933.
Policy On Pre-Approval Of Services Provided By Independent Registered Public Accounting Firm
Pursuant to the requirements of the Sarbanes-Oxley Act of 2002, the terms of the engagement of Cherry, Bekaert & Holland, L.L.P. with respect to all auditing services and non-audit services to be performed for the Company by its independent registered public accountants are subject to the specific pre-approval of the audit committee (except where such services are determined to be de minimis under the Exchange Act). All audit and permitted non-audit services to be performed by Cherry, Bekaert & Holland, L.L.P. require pre-approval by the audit committee in accordance with pre-approved procedures established by the audit committee. The audit committee may delegate to one or more designated members of the audit committee who are independent directors of the board of directors, the authority to grant such pre-approvals. The decisions of any member to whom such authority is delegated are presented to the full audit committee at the next scheduled meeting of the committee. The procedures require all proposed engagements of Cherry, Bekaert & Holland, L.L.P. for services of any kind to be directed to the Companys Principal Accounting Officer and then submitted for approval to the audit committee prior to the beginning of any services.
In fiscal 2009, 100% of the audit fees, audit-related fees and tax fees billed by Cherry, Bekaert & Holland, L.L.P. were approved either by the audit committee or its designee. The fees billed by Cherry, Bekaert & Holland, L.L.P. that are shown in the following table for fiscal 2008 were also pre-approved by the audit committee or its designee. The audit committee has considered whether the provision of non-audit services by the Companys independent registered public accounting firm is compatible with maintaining auditor independence and believes that the provision of such services is compatible.
Independent Registered Public Accounting Firm Fees
The following tables show the type of services and the aggregate fees billed to the Company for such services during the fiscal years ended June 30, 2009 and 2008 by SunLinks independent registered public accounting firm, Cherry, Bekaert & Holland, L.L.P. Descriptions of the service types follow the table.
The aggregate fees billed by Cherry, Bekaert & Holland, L.L.P. for each of the last two fiscal years include fees for professional services rendered for the audit of the Companys annual financial statements, review of financial statements included in the Companys Quarterly Reports on Form 10-Q and consents and assistance with and review of other documents filed with the SEC, and accounting and financial reporting consultations and other attest services and the issuance of consents.
The aggregate fees billed by Cherry, Bekaert & Holland, L.L.P. in each of the last two fiscal years include fees for assurance and related services that are reasonably related to the performance of the audit or review of the Companys financial statements. The nature of the services performed for these fees may include, among other things, employee benefit plan audits, internal control reviews, attest services not required by statute or regulation and consultations concerning financial accounting and reporting matters not classified as an audit.
The aggregate fees billed by Cherry, Bekaert & Holland, L.L.P. in each of the last two fiscal years include fees for professional services rendered for tax compliance, including assisting the Company with tax audits.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934 requires directors and certain officers of the Company and owners of more than 10% of the Companys common shares to file an initial ownership report with the Securities and Exchange Commission and a monthly or annual report listing any subsequent change in their ownership of any of the Companys equity securities. The Company believes, based solely on a review of the copies of those reports furnished to the Company during the past year and written representations to it that no other reports were required, that during the period from July 1, 2008 through June 30, 2009 all filing requirements have been met, except that Mr. Alvis failed to timely file a Form 4 for shares acquired on August 22, 2008, but filed a Form 4 reporting such acquisition on September 10, 2008, and Dr. Baileys failed to timely file a Form 4 for shares acquired on March 10, 2008, but filed a Form 4 reporting such acquisition on May 14, 2009.
COST OF SOLICITATION
The cost of solicitation of proxies will be borne by the Company. In addition to the use of the mails, proxy solicitations may be made by directors, officers and employees of the Company, personally or by telephone or other means of communication, without receiving additional compensation. It is also anticipated that banks, brokerage houses and other custodians, nominees and fiduciaries will be requested to forward soliciting material to their principals and to obtain authorization for the execution of proxies. The Company will reimburse banks, brokerage houses and other custodians, nominees and fiduciaries for their out-of-pocket expenses.
REQUIREMENTS, INCLUDING DEADLINES, FOR SUBMISSION OF PROXY PROPOSALS, NOMINATION OF DIRECTORS AND OTHER BUSINESS OF SHAREHOLDERS
We plan to hold our 2010 annual meeting of shareholders during the month of November. Any proposal of a shareholder intended to be presented at the 2010 annual meeting of shareholders must be received by us for inclusion in the proxy statement and form of proxy for that meeting no later than June 8, 2010, 120 days before the anniversary of the date of this proxy statement. If any proposal is submitted after that date, we are not required to include it in our proxy materials. Proposals should be submitted to the following address:
SunLink Health Systems, Inc.
900 Circle 75 Parkway, Suite 1120
Atlanta, Georgia 30339
A notice of a proposed item of business should include a description of, and the reasons for, bringing the proposed business to the meeting, any material interest of the shareholder in the business, and certain other information about the shareholder.
Under our Code of Regulations, and as SEC rules permit, shareholders must follow certain procedures to nominate a person for election as a director at an annual or special meeting. Under these procedures, shareholders must submit the proposed nominee by delivering a notice to the Secretary of the Company at our principal executive offices. Normally, we must receive notice of a shareholders intention to introduce a nomination at an annual meeting not less than 50 days nor more than 75 days before the next meeting. Assuming that our 2010 Annual Meeting of Shareholders is held on November 8, 2010, we must receive notice pertaining to the 2010 Annual Meeting no earlier than August 25, 2010 and no later than September 19, 2010. However, if we give less than 60 days notice or public announcement of the annual meeting date, we must receive the notice no later than the close of business ten days after the earlier of the date we first provide notice of the meeting to shareholders or announce it publicly.
If we hold a special meeting to elect directors which is with less than 60 days notice, the effect of our Code of Regulations will be that we must receive a shareholders notice of intention to introduce a nomination no later than the close of business ten days after the earlier of the date we first provide notice of the meeting to shareholders or announce it publicly.
A notice of a proposed nomination must include certain information about the shareholder and the nominee, as well as a written consent of the proposed nominee to serve if elected.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have mailed, and posted on the Internet, our 2009 Annual Report to Shareholders in connection with this proxy solicitation. IF YOU WOULD LIKE A PHYSICAL COPY OF OUR 2009 FORM 10-K, EXCLUDING CERTAIN EXHIBITS, PLEASE CONTACT SUNLINK HEALTH SYSTEMS, INC., 900 CIRCLE 75 PARKWAY, SUITE 1120, ATLANTA, GEORGIA 30339.
Admission To Meeting
All shareholders as of the record date, or their duly appointed proxies, may attend the meeting. Seating, however, may be limited. Admission to the meeting will be on a first-come, first-served basis. Please note that if you hold your shares in street name (that is, through a broker or other nominee), you will need to bring a copy of a brokerage statement reflecting your stock ownership as of the record date. Only shareholders as of the record date may attend the meeting. Each shareholder may be asked to present valid picture identification, such as a drivers license or passport. Cameras, recording devices, cellular telephones, beepers and other electronic devices will not be permitted at the meeting.
Action On Other Matters At The Annual Meeting
At this time, we do not know of any other matters to be presented for action at the annual meeting other than those mentioned in the Notice of annual meeting of shareholders and referred to in this proxy statement. If any other matter properly comes before the meeting, it is intended that the proxies will be voted in respect thereof in accordance with the judgment of the persons voting the proxies.
Shareholders are urged to date, sign and return promptly the enclosed proxy in the accompanying envelope, which requires no postage if mailed in the United States, or to vote their shares via telephone or the Internet. Your cooperation will be appreciated. Your proxy will be voted, with respect to the matters identified thereon, in accordance with any specifications on the proxy.
SUNLINK HEALTH SYSTEMS, INC.
900 Circle 75 Parkway, Suite 1120
Atlanta, Georgia 30339
NYSE Amex: SSY
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
M17561-P85121 KEEP THIS PORTION FOR YOUR RECORDS
DETACH AND RETURN THIS PORTION ONLY
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting:
The Notice and Proxy Statement and Annual Report are available at www.proxyvote.com.